January 8th, 2021 2:42pm - Posted By: Mark Cohen
Businesses sometimes ask whether they should translate their contracts into other languages for customers that don’t speak English. I appreciate the desire to help customers understand legal documents, but I believe providing contracts in other languages is unwise.
One fundamental principle of contract law is that one who signs a contract is presumed to have read it, understood it, and agreed to its terms. It is well-settled that a mentally competent person who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and must be held to have known and fully comprehended the contract's legal effect. Delfingen US-Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 801 (Tex. App. 2013).
While this may seem harsh, any other rule would wreak havoc on the legal system. Without this rule, litigants would bombard courts with lawsuits seeking to invalidate contractual obligations based on claims that one party did not read or understand the contract.
The courts have applied this rule even when the person seeking to avoid the contract does not speak English. Chen v. New Trend Apparel, Inc., 8 F.Supp.3d 406 (S.D.N.Y. 2014); Morales v. Sun Constructors, Inc.,541 F.3d 218, 222 (3d Cir. 2008)(“In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”); Tamez v S.W. Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. 2004); Vera v. N. Star Dodge Sales, Inc., 989 S.W.2d 13, 17–18 (Tex. App. 1998); In re Ledet, No. 04-04-00411-CV, 2004 WL 2945699, at *5 (Tex. App. 2004) (“Whether a party is illiterate or incapable of understanding English is not a defense to a contract.”); Fried for Use of Berger Supply Co. v. Feola,129 F.Supp. 699 (W.D.Pa.1954)(Difficulty understanding English does not render contract unenforceable).
If a business chooses to translate its contracts into another language, it assumes a duty to make certain the translation is accurate. Hialeah Automotive, LLC v. Basulto, 922 So.3d 586 (Fla. App. 2009). So, in addition to the risk of being sued by a customer claiming breach of contract, that business also assumes the risk of being accused of not providing an accurate translation and losing the benefit of the contractual provisions intended to protect that business.
Another possible problem if a business attempts to provide a foreign language version of a contract is that the meaning in the foreign language document may differ from the meaning in the English document. The question then becomes which document controls. There could also be litigation and a “battle of experts,” with different experts opining on the meaning of the foreign language term. See, for example,Ramos v. Westlake Services LLC, 195 Cal.Rprt.3d 34 (Calif. App. 2015).
For these reasons, I believe businesses should not provide translated versions of their contracts to potential customers unless the law requires it. However, if a business has strong feelings on this issue, rather than translate a contract into another language, I recommend the business include something like this in the contract in English and in the other relevant language:IF YOU DO NOT SPEAK OR UNDERSTAND ENGLISH, YOU SHOULD HAVE A QUALIFIED EXPERT TRANSLATE THIS AGREEMENT FOR YOU BEFORE YOU SIGN IT. IT IS YOUR DUTY TO MAKE CERTAIN THE TRANSLATION IS ACCURATE. IF THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND THE TRANSLATION, THIS AGREEMENT WILL GOVERN. If you have any questions, please contact me at firstname.lastname@example.org
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